Sampson v South African Post Office SOC Limited (J2106/15) [2017] ZALCJHB 145; (2017) 38 ILJ 2368 (LC) (10 May 2017)

Sampson v South African Post Office SOC Limited (J2106/15) [2017] ZALCJHB 145; (2017) 38 ILJ 2368 (LC) (10 May 2017)

The Labour Court held that when a pre-dismissal arbitration award is reviewed and set aside, the employment contract is revived retrospectively, restoring the status quo ante. The applicant is treated as if he had never been dismissed and reverts to his status as an employee on precautionary suspension. The respondent's argument that the dismissal remains in force until the rehearing was rejected. The applicant is entitled to backpay for the period between his dismissal and the review court's decision, calculated as the difference between what he would have earned at the respondent and what he actually earned at Legal Aid. The failure to tender services does not bar the claim for backpay,...

Citation
[2017] ZALCJHB 145
Parties
Applicant: Darren Sampson; Respondent: South African Post Office SOC Limited
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
10 May 2017
Case Number
J2106/15
Procedural Posture
Review Application / Judgment After Review of Pre Dismissal Arbitration Award
Outcome
Application granted. The respondent is ordered to pay the applicant backpay and accrued leave for the relevant period, subject to further determination of quantum if disputed.
Judges
Whitcher
Legal Topics
Pre Dismissal Arbitration, Review of Arbitration Award, Retrospective Reinstatement, Backpay, Contract of Employment, Section 188a
Labour Law Pre Dismissal Arbitration Review of Arbitration Award Retrospective Reinstatement Backpay Contract of Employment Section 188a

Case Brief

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Parties

Darren Sampson

Applicant

South African Post Office SOC Limited

Respondent

Procedural Posture

Review Application / Judgment After Review of Pre Dismissal Arbitration Award

Legal Issues

  1. 1 Does a court order setting aside a pre-dismissal arbitration award and remitting the matter for rehearing revive the contract of employment retrospectively?
  2. 2 Is the employee entitled to backpay for the period between dismissal and the review court's decision?
  3. 3 Does the failure to tender services affect the employee's entitlement to remuneration after the review court's decision?

Ratio Decidendi

The Labour Court held that when a pre-dismissal arbitration award is reviewed and set aside, the employment contract is revived retrospectively, restoring the status quo ante. The applicant is treated as if he had never been dismissed and reverts to his status as an employee on precautionary suspension. The respondent's argument that the dismissal remains in force until the rehearing was rejected. The applicant is entitled to backpay for the period between his dismissal and the review court's decision, calculated as the difference between what he would have earned at the respondent and what he actually earned at Legal Aid. The failure to tender services does not bar the claim for backpay,...

Court Disposition

Application granted. The respondent is ordered to pay the applicant backpay and accrued leave for the relevant period, subject to further determination of quantum if disputed.

Orders

  • The respondent is ordered to pay the applicant the difference between the remuneration he would have received between 4 June 2012 and 26 October 2015.
  • The respondent must additionally pay the applicant any accrued leave for the period mentioned.